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MATTHEWS v. PITTSBURGH. (11/25/58)

November 25, 1958

MATTHEWS, APPELLANT,
v.
PITTSBURGH.



Appeal, No. 40, March T., 1958, from order of Court of Common Pleas of Allegheny County, April T., 1950, No. 1108, in case of John William Matthews v. City of Pittsburgh et al. Order reversed.

COUNSEL

Paul J. McArdle, with him James P. McArdle, and Frank J. Kernan, for plaintiff, appellant.

Joseph F. Weis, Jr., with him Russell J. Butler, Jr., and Weis & Weis, for additional defendants, appellees.

Thomas E. Barton, Assistant City Solicitor, with him J. Frank McKenna, Jr., City Solicitor, for defendant, City of Pittsburgh, appellee.

Before Jones, C.j., Bell, Musmanno, Jones and Cohen, JJ.

Author: Musmanno

[ 394 Pa. Page 181]

OPINION BY MR. JUSTICE MUSMANNO.

On February 14, 1948, John William Matthews fell through a cellar door which formed part of the sidewalk in front of the premises at 5137 Penn Avenue, in Pittsburgh. He brought a suit in trespass against the City of Pittsburgh charging it with negligence in failing properly to inspect the premises and to correct an obviously dangerous condition, averring that the offending door was in a state of disrepair long enough for the City to have had constructive notice of it. The City brought in the property owners, Leonard Hilleson and Henry Hilleson, as additional defendants. The jury returned a verdict for $30,000 in favor of the plaintiff against the defendant and over against the additional defendants. The City and the property owner filed motions for judgment n.o.v. and new trial. The lower Court refused judgment n.o.v., but ordered a new trial. The plaintiff appealed.

Matthews established at the trial that the culprit door was one of two doors (we will call them eastern and western) which overlay a coal bin. The western door sagged 1 1/2 inches at the point it joined with the eastern door. Thus, one walking eastwardly could see that the eastern door rose 1 1/2 inches above its partner, but one proceeding westwardly would be ignorant of the unevenness of the juncture until he reached it or passed over it. On the morning of the accident, Matthews, employed as a milkman by the Otto Milk Company, was walking westwardly on Penn Avenue carrying an empty milk case and a "leaker."*fn* He traversed the eastern door safely, but as he stepped on the western door, he vanished into the coal bin below - milk

[ 394 Pa. Page 182]

    case, "leaker," and all. A passerby, John Scott, with others, helped him out of the coal hole and then examined the door which had given way like the platform of a gallows. He found that the hinge at one end was rusted away and that the other hinge was missing a pin; also that the crossbar supposed to hold the two doors together "was in bad shape." "The one part that fits in the concrete was rusted out underneath."

John Scott turned out to be one of those rare witnesses that lawyers dream about. He not only arrived at the scene of the mishap an instant after it occurred and thus could describe the condition of the tortious agency, but he had crossed over this very spot some four or five months before and had at that time noted the defects which were still existent when the milkman fell. Scott had even offered at that time to repair the defects since he was a tradesman doing that type of work. The owners did not accept his offer.

A Mrs. Beatrice F. Hartzell was also a strong witness for the plaintiff. She had worked at Brent's, the store located in the building before which the cellar doors gaped, from the latter part of 1946 to February, 1948, and thus had firsthand knowledge of the condition of the cellar doors, which she described as "rickety" and "too loose." She said that as she passed over them they would bounce, jar, sag, and "clang." In time she got the feeling that she would fall with them, ...


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